Telangana High Court
Chiluveru Ilaiah , Babu, Warangal vs The State Of A.P., Rep. By Pp., High Court ... on 29 February, 2024
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THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.1469 OF 2011
O R D E R:
The present Criminal Revision Case is filed aggrieved by the judgment dated 24.06.2011 in Criminal Appeal No.152 of 2010 on the file of the learned VIII Additional Sessions Judge (FTC), Warangal (for short, "the appellate Court") in confirming the judgment dated 10.06.2010 in C.C.No.819 of 2008 on the file of the learned I Additional Judicial First Class Magistrate, at Warangal (for short, "the trial Court").
2. Heard Ms. Hima Bindu, learned counsel representing Mr. E. Venkata Reddy, learned counsel for the petitioner and Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.2 State.
3. The brief facts of the complaint are that on 29.03.2007, petitioner/accused borrowed an amount of Rs.1,00,000/- from respondent No.2/complainant for his personal necessities and executed a demand promissory note in his favour agreeing to repay the said amount with interest at 12% per annum within six months. Even after repeated requests, the accused failed to repay the amount. The complainant issued legal notice dated 2 19.01.2008 for recovery of the amount due. After receiving the said notice, the accused approached the complainant and stated that the total amount due under the promissory note was Rs.1,11,000/-, to that effect issued a cheque dated 24.02.2008 drawn on Development Credit Bank, Warangal Branch and requested him to present the said cheque on 10.02.2008.
4. On presentation, the cheque was returned dishonoured on the same day with a reason "funds insufficient". There upon, the complainant again issued a legal notice dated 15.03.2008 calling upon him to pay the cheque amount. Even after receipt of the said notice, the accused failed to repay the amount due. Hence, the present complaint.
5. The trial Court vide judgment cited supra sentenced the accused to undergo rigorous imprisonment for a period of six months and pay fine of Rs.4,000/-. Out of the fine amount realized, Rs.2,000/- was directed to be paid to the complainant towards compensation, in default of payment of the fine, the accused was directed to suffer simple imprisonment for a period of two months. Aggrieved thereby, the accused preferred an appeal.
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6. The appellate Court vide judgment cited supra dismissed the appeal confirming the judgment passed by the appellate Court. Assailing the same, the present Revision.
7. During the course of hearing, learned counsel for the petitioner stated that the trial Court as well as the appellate Court concurrently found the petitioner guilty for the offence punishable under Section.138 of N.I.Act. Learned counsel relied upon the order dated 18.04.2017 passed by this Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of 2015, wherein and whereby, this Court upon taking into consideration the decisions passed by the Hon'ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal 1, R. Vijayan Vs. Baby 2, S.R. Sunil & Company Vs. D. Srinivasavaradan 3, Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi 4 and Somnath Sarka Vs. Utpal Basu Mallick5, wherein it was held that, the object of incorporating the penal provisions under Sections 138 to 142 of the NI Act is not only to provide a strong criminal remedy to deter the high incidence of dishonour of cheques but a remedy of punitive nature and observed that where 1 2010 (5) SCC 663 2 (2012) 1 SCC 260 3 (2014) 16 SCC 32 4 (2015) 9 SCC 622 5 2013 (16) SCC 465 4 there is a conviction, there should be a consequential levy of fine amount sufficient to cover the cheque amount along with simple interest thereon at a fixed rate of 9% per annum and held that the interest should be followed by an award of such sum as compensation from the fine amount. However, to meet the ends of justice, this Court modified the sentence of six months of simple imprisonment with fine of Rs.10,000/-, to imprisonment till rising of the day by giving set off to the period undergone if any and fine of Rs.10,00,000/- of which Rs.50,000/- would go to the State and Rs.9,50,000/- as compensation to the complainant which includes Rs.10,000/- fine if paid to adjust and out of it in compensation received by complainant, for the balance to pay or deposit within one month from that day, failing which, the accused was to suffer the default sentence of six months simple imprisonment for the lower Court to levy under Section 421 of Cr.P.C. and enforce it. Therefore, he seeks to pass appropriate orders relying upon the said order.
8. Learned Assistant Public Prosecutor opposed the same and contended that respondent No.2 underwent severe mental agony by roaming around the trial Court as well as the appellate Court. Learned counsel submitted that the both the Courts upon 5 appreciating the oral and documentary evidence rightly passed the impugned judgments. But, as the matter is pending from the year 2011 learned counsel sought to pass appropriate orders.
9. On behalf of the complainant, the trial Court examined PWs.1 and 2 and marked Exs.P1 to P6. On behalf of the defence none were examined and no document was marked. Upon careful scrutiny of the oral and documentary evidence, the both the Courts observed that the accused pleaded that Ex P1 cheque was kept with one Sarangapani and the said Sarangapani, with a dishonest intention handed over the same to the complainant. The complainant misused the same and filed the present complaint. As such there was no privity of contract between the accused and the complainant.
10. The accused failed to substantiate his defence of issuing the blank cheque to Sarangapani, who misused the same by handing it over to the complainant. Therefore, the appellate Court found that the sentence imposed by the trial Court is reasonable and the complainant was able to prove the guilt of the accused for the offence punishable under Section 138 of the NI Act beyond reasonable doubt. Therefore, the appellate Court dismissed the appeal and rendered the judgment cited supra. 6
11. In the present case on hand, both the Courts held that the petitioner was guilty for the offence punishable under Section 138 of I.P.C., which finding, in my considered view, does not call for interference, in the exercise of revisional jurisdiction under Section 397 Cr.P.C.
12. Having regard to the submissions made by both the learned counsel, on perusing the order dated 18.04.2017 passed by this Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of 2015, upon considering the fact that the petitioner suffered mental agony and hardship during the course of litigation before the trial Court as well as the appellate Court and as twelve long years have elapsed from the date of filing this Revision, this Court is inclined to reduce the sentence imposed against the petitioner to the period of imprisonment already undergone by him and direct the petitioner to pay an amount of Rs.1,00,000/- to the credit of the trial Court within one year from today. Out of which, an amount of Rs.10,000/- shall go to the State and Rs.90,000/- shall be paid to respondent No. 2
13. In default of payment of the said amount, the judgment dated 24.06.2011 in Criminal Appeal No.152 of 2010 on the file 7 of the learned VIII Additional Sessions Judge (FTC), Warangal stands good in all respects.
14. Upon depositing the said amount, respondent No.2/ complainant is granted liberty to withdraw the same with immediate effect.
15. With the above direction, the Criminal Revision Case stands disposed of. Needless to mention, the petitioner is at liberty to work out the remedies available under law.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 29.02.2024 ESP